When good stories come from bad sources

By Edward Wasserman
Week of March 5, 2007

The two San Francisco reporters who risked prison for publishing sensational grand jury testimony about doping by big name athletes are off the hook, legally at least. That should be cause for celebration for people like me who worry that journalists have grown too willing to give up confidential sources.

But it’s not that simple. The final episode of the BALCO affair – named for the lab that allegedly supplied performance-enhancing drugs to such baseball stars as Barry Bonds – is no proud tale of First Amendment guts and glory.

Instead, it reads very much like an instance of determined reporters being played by determined sources for ends that don’t look much like public service.

Here’s the story. In 2004 The San Francisco Chronicle ran articles based on leaked grand jury testimony in which top athletes admitted using drugs supplied by BALCO. The reporters’ work triggered congressional hearings, an investigation by Major League Baseball and, by most accounts, some needed reforms.

It also triggered an FBI investigation into how the reporters got the secret transcripts, and they faced 18 months in prison for refusing to name their source – a refusal praised by advocates of a federal shield law to give journalists statutory rights to withstand legal pressure.

Now their source has been identified. On Valentine’s Day news broke that without their help the FBI arrested a San Francisco lawyer named Troy Ellerman, who pleaded guilty to four felonies in connection with letting a Chronicle reporter review the transcripts. He faces up to two years in prison.

Now it gets good. Ellerman, it turns out, had represented a BALCO official implicated in the original probe. He leaked the transcripts in June 2004 not because he wanted the facts made public, but because he hoped that his leak would provide legal grounds to get charges against his client dismissed. The leaks, he argued in October 2004, had made a fair trial “practically impossible.” He even accused prosecutors of the leaking, an allegation the Chronicle reported, knowing it to be false.

Ellerman was trying to engineer an unwarranted dismissal of charges and the Chronicle reporters were his knowing helpmates. Nevertheless, several weeks later one of the reporters went back to him to review a second set of transcripts.

The result was a December 2004 article based on testimony by Barry Bonds and other star ballplayers, which prompted Bonds’ attorney to accuse prosecutors of leaking the testimony “to smear” his client. That accusation was reported by the same Chronicle reporters who had reported Ellerman’s new leaks, and who knew this attorney’s accusation too was false.

So we have an ethical mess. Defenders of the reporters argue that journalists can’t be expected to ignore information because it comes from self-serving sources. Mark Feldstein, a veteran reporter and now a professor at George Washington University, told the Chronicle, “The public is the poorer if reporters get high-and-mighty and say, ‘We accept only leaks with pure motives.’”

It’s indeed a problem, which you might call The Dilemma of the Evil but Truthful Source: When a journalist receives solid information of clear public importance, which is given in order to advance a private stratagem that is both morally questionable and known to the reporter. The question is whether the journalist’s professional obligation to report that information entitles him to ignore that unsavory private agenda.

The short answer, I believe, is that it doesn’t. Journalists aren’t free to act as if that private agenda doesn’t exist. They may well do the story anyway. But I think they must accept that they’ll be complicit in that private stratagem, and must conclude that the wrongness of that complicity is redeemed by the wider public benefit of the secrets it unlocks.

Does BALCO meet that test? True, the stories triggered outrage and reform, and it’s hard to fault reporting that had such broadly beneficial consequence.

But the grand jury seemed to be doing its job, and even though penetrating its secrecy might have been warranted if it failed to act despite evidence of serious wrongdoing, that eventuality was months away. Ellerman’s leaks might have scuttled the investigation, as he intended, and enabled Major League Baseball to carry on ignoring drug use.

After he was arrested, The Chronicle boasted that its reporters had “stood tall for a free press.” But they must also accept full responsibility for whatever it is they were standing on.

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